Difficult Know it All trustee

Dear Len & Rosie,

My sister has power of attorney over our mother and is now also the trustee of our mother’s trust. My mother has dementia. Does my sister have an obligation to her brothers in regards to what she is doing with our mother’s monies and how it is being handled in regards to our mother’s care? We are all named in the trust and have received money from our mother’s trust as our sister decides. Our concern is whether or not this money be left in the estate for our mother’s future care? Is she required by any law to report to the rest of us on how she is handling all of this. She is a very difficult to deal with and she’s a know-it-all.


Dear Dennis,

If your sister is smart, she would bury you in information - when a trustee shares information, account statements and the like with family members, trust develops and everyone gets along better. A trustee who hides information creates a situation in which family members think the trustee is up to no good. Trustees need to be honest, organized and diplomatic. Your sister appears to be lacking in at least one of these traits.

This is a case where we would have to review your mother’s trust to see what rights you have to distributions from the trust and what duties your sister has, if any, to account to you for her actions. But we can tell you what most trusts say about this.

Most trusts keep everything for the benefit of the parents, passing assets on to the children only after the parent or parents have died. It is very unlikely that your mother’s trust says anything about your sister the trustee making gifts to anyone without your mother’s direction. Sometimes gifting language is included in trusts to allow for gifting to reduce or avoid estate taxes or to qualify for Medi-Cal benefits, but that’s not very common. There is a very good chance that your sister has been making gifts in violation of the terms of your mother’s trust. In any event, your sister shouldn’t be making any gifts of anything your mother may need for her own care unless the trust document requires that she do so.

On the other hand, unless the trust document gives you a right to present distributions from the trust, you probably have no right to any information concerning the trust, let alone a trust accounting. Only beneficiaries presently entitled to distributions of trust income or principal have the right to an accounting, and, chances are, your mother is the sole beneficiary of the trust until her death.

You should review your mother’s trust with an attorney. Maybe you are entitled to an accounting, but probably not. If you are not entitled to an accounting now, the only way you can get one is if you are your mother’s agent under her Durable Power of Attorney or you are appointed by the court as her conservator.

Len & Rosie